Local Ordinances and Public Employers

Employment discrimination based on sexual orientation and gender identity is prohibited in several localities.   Specifically, Allentown, City of Lancaster, Easton, Erie County, Harrisburg, Lansdowne, New Hope, Philadelphia, Pittsburgh, Scranton, Swarthmore, West Chester, and York all have local non-discrimination ordinances which prohibit on-the-job discrimination against LGBT workers. Some government entities, including the State of Pennsylvania, have also acted to prohibit discrimination against their own LGBT workers. (For Pennsylvania's prohibition on discriminating against state-employed LGBT workers see http://www.pacode.com/secure/data/004/chapter1/s1.161.html ).

There are numerous unresolved issues in Pennsylvania regarding how and when people can seek enforcement of local non-discrimination ordinances and/or the internal anti-discrimination policies of government employers. Therefore, while sexual orientation and gender identity discrimination is illegal in each of the above localities, persons subject to discrimination should be aware that they may or may not have a way of taking action under the law. If you have been discriminated against in one of the above locales, and are considering your options, you should contact Equality Advocates Pennsylvania or a private attorney.

Federal and State Law

No federal law or Pennsylvania state law explicitly prohibits discrimination against LGBT workers. Therefore, members of the LGBT community who experience discrimination outside of the localities listed above may not be legally protected.   However, federal and state law do prohibit discrimination in employment on a variety of other bases, including sex, disability, age, race, color, religion, and national origin. As set forth below, some courts have found that discrimination against LGBT workers may fall within one or more of these other categories.

Sex Discrimination

The United States Supreme Court has held that an employer who discriminates against a man or a woman because he or she does not match "gender stereotypes" has engaged in illegal sex discrimination. Therefore, an employer who discriminates against a woman because she does not dress femininely enough, or because she acts "macho," has violated federal law. Similarly, an employer who discriminates against a man because he wears an earring or acts too femininely has discriminated on the basis of sex.

Some courts, applying this reasoning, have found LGBT workers to be protected under federal and/or state sex discrimination laws. Specifically, those courts have found that where an LGBT employee is harassed or otherwise discriminated against because of his or her failure to conform to gender stereotypes, he or she has been discriminated against "because of sex." In the case of transgender employees, this has led some courts to hold that discrimination based on gender identity - because it is always based on a failure to conform to the gender norms associated with an individual's birth sex - is always sex discrimination. In the case of lesbian gay and bisexual employees, the courts have engaged in a case by case analysis of the issue, looking to whether there were specific reasons to think that the discrimination or harassment was motivated by the employee's failure to conform to gender stereotypes. These type of "gender stereotyping" arguments have not been extensively addressed by the Pennsylvania courts. Therefore, the law applicable to LGBT workers in Pennsylvania remains somewhat unsettled.

Disability Discrimination

Some courts in other states have also found that state anti-discrimination laws which prohibit disability discrimination also prohibit gender identity discrimination. Federal laws protecting the disabled expressly exclude transgender individuals. Pennsylvania state disability laws do not explicitly exclude transgender people from coverage, but thus far have been interpreted by the courts as not extending to gender identity discrimination.   Therefore, while there is some possibility that a court might find transgender individuals to be protected under the Pennsylvania state laws prohibiting disability discrimination, this is relatively unlikely.